Kathleen Rochford v WPC Cupid (now Bailey) No.18752,

• Jurisdiction: Trinidad & Tobago
• Judge: Vasheist Kokaram, J.A.
• Judgment Date: 11 May 2020
• Neutral Citation: TT 2020 CA 19
• Court: Court of Appeal (Trinidad and Tobago)
• Docket Number: App No. P009 of 2020, AP P-010/2020, App No. P011/2020, App. No. P013/2020, App. No. P014/2020, App No. P016/2020, App. No S018/2020, App No. S019/2020, App No. S020/2020, App No. S021/2020, App No. P022/2020, App. No. S023/2020, App. No. S024/2020, App. No. S025/2020, App. No. S026/2020, App. No. S027/2020, App No. S028/2020, App. No. S029/2020
• Date: 11 May 2020

IN THE COURT OF APPEAL

(CHAMBER COURT)

Before

THE HONOURABLE JUSTICE Vasheist Kokaram, J.A.

App No. P009 of 2020, AP P-010/2020, App No. P011/2020, App. No. P013/2020, App. No. P014/2020, App No. P016/2020, App. No S018/2020, App No. S019/2020, App No. S020/2020, App No. S021/2020, App No. P022/2020, App. No. S023/2020, App. No. S024/2020, App. No. S025/2020, App. No. S026/2020, App. No. S027/2020, App No. S028/2020, App. No. S029/2020

Between

Kathleen Rochford

and

WPC Cupid (now Bailey) No.18752,

Lyndon Latouche

and

PC Ainsley Cato No. 19491,

Winston Barbaste

and

PC Darren Thompson No. 19842,

Saliym Noel

and

PC Leon Graham No. 8307,

Jason Williams

and

PC Randell Roberts N.20664,

Anton Barnett

and

PC Guevara N. 18743,

Vishnu Ramlal

and

PC Jugmohan No. 20508,

Alexter Moore

and

PC James No.16912,

Devi Noel

and

WPC Jagroop No.20177,

Hayden Gorbert

and

PC Nanan No. 14492,

Kefton Albino

and

PC Boucaud No. 20182,

Lester Marcano

and

PC Hamilton No. 19776,

Shekar Baboolala

and

PC Deena MO.18836,

Kareem Xavier

and

RC Ramansar No.20000,

Steven Anthony

and

PC Mitchell No. 19861,

Peter Veronique

and

CPL Ramsahai No. 14356,

Pedro Williams

and

PC Phillip No. 1547,

Kassim Mohammed

and

PC Toussaint No. 15653 1

Appearances:

Mr. Yves Jacques Nicholson, Attorney at Law for the Applicants.

Ms. Marissia Joseph, Attorney at Law for the Respondent.

Headnote

Notice of Application; Extension of time to file appeal; Dangerous Drugs Amendment Act No.24 of 2019; possession of cannabis; change in law; probability of success on appeal; substantial injustice; defective applications .

The applicants were charged and convicted for various offences of possession of cannabis. They applied to the Court for an extension of time to appeal their convictions and/or sentences as a

result in the change in the statutory regime which decriminalised the possession of certain amounts of cannabis on 23 ^rd December 2019 by virtue of the Dangerous Drugs Amendment Act No. 24 of 2019.

The applications were dismissed on three main planks: First, that there was no sufficient material in support of the application upon which the Court could exercise its discretion to grant such an exceptional relief of extending the time to appeal their convictions or sentences even for “change in law cases”. Second, that the new statutory regime decriminalising the possession of certain amounts of cannabis does not have retrospective effect save for where it expressly provides. Third, the facts adduced on the applications do not disclose any substantial injustice suffered by the applicants to warrant an extension of time to appeal these convictions or sentences.

1 The eighteen (18) applicants before this Court were prior to 23 ^rd December 2019 all charged, convicted and sentenced to either paying a fine and/or serve a term of imprisonment for possession of cannabis under section 5(1) of the Dangerous Drugs Act Chapter 11:25. The date 23 ^rd December 2019 is significant. On that date the amendment to the Dangerous Drugs Act 2 was enacted introducing a new statutory regime decriminalising the possession of certain amounts of cannabis. One of the changes effected in the law of possession of small amounts of cannabis by that amendment is that a person who is in possession of less than 30 grammes of cannabis does not commit a criminal offence 3. This judgment addresses the fate of those persons who would have been lawfully convicted and sentenced for possession of cannabis under existing law before the introduction of this new statutory regime by the amendment.

2 Does this change in the law now have retroactive effect to apply to these applicants? Are their convictions now to be considered erroneous in law or their sentences too severe having

regard to this change in law? Should these persons charged, convicted and sentenced properly under the law that existed under the Dangerous Drugs Act prior to the Dangerous Drugs Amendment Act be allowed an extension of time to appeal their convictions and sentences now that the law has changed

3 These are the questions raised by these eighteen (18) 4 persons who have now applied to this Court for an extension of time to appeal their convictions and sentences for possession of cannabis as a result of the change in the statutory regime decriminalising the possession of small amounts of cannabis. They contend that they will suffer a substantial injustice if they are not allowed to benefit from this change in the law which, simply put, would in some cases have resulted in either the dismissal of their charges or different sentences.

4 For the reasons set out in this judgment, I dismissed these applications on three main planks: First, that there was no sufficient material in support of the application upon which the Court could exercise its discretion to grant such an exceptional relief of extending the time to appeal their convictions or sentences even for “change in law cases”. Second, that the new statutory regime decriminalising the possession of certain amounts of cannabis does not have retrospective effect save for where it expressly provides. Third, the facts adduced on the applications do not disclose any substantial injustice suffered by the applicants to warrant an extension of time to appeal these convictions or sentences. Further, the statute itself adequately deals with the impact the change in law would have had on those who were charged or convicted prior to the enactment of the amendment. For such persons it provides an avenue for having their records expunged and to apply for a pardon.

5 In this judgement after outlining the different categories of applicants and the new statutory regime, I address three main issues in determining whether the Court should exercise its discretion to extend the time to appeal:

• (a) Whether there are good and substantial reasons for the delay in making these

  applications;

• (b) Whether the applicants would suffer substantial injustice if an extension of time is not granted;

• (c) Whether there is a probability of success of their appeal in having their convictions quashed as erroneous in law or sentences reduced as being too severe.

The Applications

6 These eighteen (18) applicants have all been lawfully convicted and sentenced under section 5(1) of the prevailing provisions of the Dangerous Drugs Act prior to December 2019. 5 They were categorised by Counsel for the applicants into distinct groups based on the three tiers of possession provided for in sections 5( 2)(f), 52A, 52B, of the Dangerous Drugs Amendment Act. These sections catered for the following tiers of possession: a maximum of 30 grammes (First Tier), above 30 grammes to 60 grammes (second tier) and above 60 grammes-100 grammes (third tier). The applicants fell in the following categories:

• a) First Tier possession: This group of applicants were said to be in possession of less than 30 grammes of cannabis. There was only one person in this category: Kefton Albino, a fine of $4,000.00.

• b) Third Tier possession: This group of applications were said to be in possession of less than 100 grammes of cannabis and sentenced to a term of imprisonment — There were six persons in this category: Kathleen Rochford (18 months imprisonment), Anton Barnett (fine of $3,500.00 in default 9 months imprisonment), Vishnu Ramlal (9 months imprisonment), Hayden Gorbert (18 months imprisonment), Peter

  Veronique (3 years imprisonment), Jason Williams (2 years imprisonment). 6

• c) In excess of Third Tier possession: This group was said to be in possession of more than 100 grammes of cannabis and sentenced to a term of imprisonment – There were 11 persons in this category: Pedro Williams (18 months imprisonment), Lyndon Latouche (2 years imprisonment), Saliym Noel (14 months imprisonment), Winston Barbaste (18 months imprisonment), Alexter Moore (18 months imprisonment), Devi Noel (18 months imprisonment), Lester Marcano (18 months imprisonment), Shekar Baboolal (3 years imprisonment), Kassim Mohammed (12 months imprisonment), Kareem Xavier (16 months imprisonment) and Stephen Anthony (3 years imprisonment).

7 Counsel for the applicants submitted that the test used to determine applications for an extension of time for an appeal in “change in the law cases” is whether the applicants would suffer substantial injustice if the applications were not to succeed. Reliance was placed on the authorities of Lee Young and Partners v EMDB Civil Appeal No. P169 of 2017, Taunton-Collins v Cromie and others [1964] 1 WLR 637, LJ Williams v Zim Integrated Shipping Services Civil Appeal No. P059 of 2014 and Towers et al v R [2019] EWCA Crim 198. 7

8 While admitting that the applicants were all properly convicted and sentenced pursuant to the prevailing law, Counsel also submitted that the Dangerous Drugs Amendment Act failed to specifically mention those persons who were charged and convicted for the offence prior to the Dangerous Drugs Amendment Act and are currently serving a term of imprisonment for that conviction. The Dangerous Drugs Amendment Act de-criminalised cannabis to an

extent and they should also benefit from the statute as representing the correct law for the offences of possession of cannabis. Consequently, there would be substantial injustice to the applicants if they were not granted leave to appeal as their convictions were erroneous in law 8 and sentences unduly severe in light of the current law on possession

9 Simply put, by way of illustration, for the applicant who was convicted for possession of less than 30 grammes of cannabis and sentenced in a manner which resulted in a fine or imprisonment there would be no conviction under the existing law pursuant to section 5 (2)(f) of the Dangerous Drugs Amendment Act.

10 For applicants who were convicted for possession of more than 60 grammes but less than 100 grammes of cannabis and sentenced for a term...